Douglas M. v. Superior Court CA5 ( 2021 )

Filed 4/21/21 Douglas M. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
DOUGLAS M.,
F082255
Petitioner,
(Super. Ct. Nos. 17CEJ300167-1,
v. 17CEJ300167-2, 17CEJ300167-3,
17CEJ300167-4, 17CEJ300167-5,
THE SUPERIOR COURT OF FRESNO 17CEJ300167-6, 17CEJ300167-7)
COUNTY,
Respondent; OPINION
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M.
Arax, Judge.
Brenda Cantu Hook for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Meehan, Acting P.J., Snauffer, J. and DeSantos, J.
Petitioner Douglas M. (father) seeks an extraordinary writ from the juvenile
court’s orders terminating his reunification services at a contested and combined six-, 12-
and 18-month review hearing and setting a Welfare and Institutions Code section 366.26
hearing1 on May 5, 2021, as to his six children who range in age from two to 13 years of
age. Joanna M., father’s wife and the mother of his children (mother), also filed an
extraordinary writ petition in our case No. F082257 currently pending in this court.
Father contends the court erred in terminating reunification services because the Fresno
County Department of Social Services (department) failed to make reasonable efforts to
assist him in reunifying with the children. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Protective Custody
On May 7, 2019, Fresno Police Department officers responded to a motel because
Michaela M., father’s then six-year-old daughter, was found wandering near a busy street
unsupervised and had stopped traffic by attempting to walk out into the street. Mother’s
fourteen-year-old daughter, Sophia, had been charged with taking care of Michaela and
their five siblings, 11-year-old D.M., eight-year-old K.C.M., four-year-old K.L.M., three-
year-old K.B.M., and 10-month-old K.A.M. The children lived in a motel room with
mother and father2 and two dogs. It was the second time the police had been called under
the same circumstances. A referral was made to the department and a social worker
responded to the motel room.
When the parents arrived at the motel, over an hour after the initial call, mother
said she and father had gone to bid on a job. He was a construction worker and she was
his bookkeeper. She said she never left the children alone and that this was only the
1 Statutory references are to the Welfare and Institutions Code.
2 The whereabouts of Sophia’s alleged father, Marcus S., were unknown throughout
the proceedings.
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second time. She tried to call a friend to help them with babysitting but guessed her
friend did not show up. She said she only left Sophia in charge of the children once a
week. She maintained communication with Sophia the entire time she was gone. She
also provided Sophia a child safety lock to put on the motel door to keep the children
from leaving but Sophia did not use it.
Mother reported the children were healthy. Eleven-year-old D.M. was possibly
autistic but high functioning. Michaela was very active and had behavioral problems.
Mother homeschooled the children that were of school age but had not registered them
with any school for their curriculum. Sophia said they had not received any instruction
during 2019. Mother denied any substance abuse, domestic violence or involvement with
law enforcement. However, she admitted she and father smoked marijuana after the
social worker asked them to drug test.
The children were taken into protective custody and placed in foster care. The
older children stated the parents left them in Sophia’s care for five to six hours every day
while they were out looking for work or doing other things. Sophia, eight-year-old
K.C.M. and six-year-old Michaela reported domestic violence in the home in the form of
yelling, cursing and pushing. Sophia said her parents were “very odd together.” As an
example, they hung a blanket and had sex in the hotel room next to her and her siblings.
The following day, Michaela’s foster mother reported she was overwhelmed with
Michaela’s behavior and could no longer care for her. Michaela swung at and kicked her
and attempted to bite her. She threatened to drop things she picked up around the house
and attempted to leave the house several times, requiring the foster mother to sleep in her
hallway. The other children said that was Michaela’s normal behavior. A few days later,
Michaela was involuntarily detained under section 5150 and admitted to a pediatric
psychiatric facility where she was diagnosed with suicidal ideation, bipolar disorder,
schizophrenia and insomnia. She was violent toward the nurses and self-harming. After
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approximately two weeks of hospitalization, she was discharged and transported to a
short-term residential therapeutic program (STRTP) where she received mental health
treatment.
On May 9, 2019, the department conducted a team decision meeting. The parents
were late because they stopped to drug test on their way. However, they refused to be
observed urinating and left without being tested. Father informed the social workers the
urinalysis and the meeting were a waste of his time and left. Mother remained and
agreed to test by hair follicle analysis. The social workers determined voluntary family
maintenance services were not appropriate because of the high risk to the children’s
safety and the parents’ inability to make a safety plan.
Detention
The department filed a petition on behalf of all seven children, alleging they came
within the juvenile court’s jurisdiction under section 300, subdivision (b)(1) because the
parents failed to supervise them, provide adequate food, shelter and medical attention and
endangered them by engaging in domestic violence and abusing substances.
The detention hearing was conducted on May 10, 2019. The parents appeared
with counsel and denied the allegations. After neither party stipulated to detention and
mother disputed facts in the report, the juvenile court set a contested detention hearing for
May 16. However, neither parent appeared at the contested hearing, and the juvenile
court did not find good cause to continue it. The court ordered the children detained and
ordered the department to offer the parents parenting education, substance abuse,
domestic violence and mental health assessments, any treatment recommended from the
assessments and random drug testing. The court also ordered reasonable supervised
visits for the parents and ordered them to participate in a hair follicle test. The court set
the jurisdictional hearing for June 4. Father subsequently refused to discuss the case with
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the social worker assigned their case, Frank Maldonado-Montez (Montez), because he
and mother believed the children would be returned to them at the June 4 hearing.
On May 13, 2019, the parents moved to Stanislaus County and were living in a
van parked in the backyard of the paternal grandmother’s residence in Oakdale. They
visited the children at the child welfare office in Fresno. During a visit on May 14, 2019,
mother criticized and blamed Sophia for the removal of her siblings. Mother said, “ ‘You
got what you wanted’ ” and “ ‘I am glad Michaela is acting up so I can say Ha Ha, now
the kids will have to be returned to me.’ ” Sophia believed the children’s removal was
her fault and she was the problem in the family because she did not care for them
properly. On May 29, Montez requested the parents be placed on the waiting list for
therapeutically supervised visits.
Child Welfare and Criminal History
The parents have child welfare history in Lake County. In March 2011, father’s
daughter, K.M., was removed from his custody because he was neglecting her mental
health needs and there were allegations mother was physically abusing her. K.M. was
diagnosed with reactive attachment disorder, posttraumatic stress disorder, obsessive-
compulsive disorder and major depression with psychotic features. She was taken from
the home because she had suicidal ideations and heard voices telling her to hurt her
younger siblings. Father was ordered to participate in mental health services and
parenting classes but did not and blamed K.M. for her behavior. He did not visit her and
moved to Hawaii with mother and their six children during the dependency. In
July 2012, the court terminated reunification services and ordered K.M. into long-term
foster care. At the time of these proceedings, she was a nonminor dependent in
Lake County.
Mother had child welfare history in St. Louis, Missouri where her son Donovan
and daughter Kyra were placed under “ ‘courtesy supervision’ ” by the juvenile court. In
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2000, they were placed in a legal guardianship with their paternal grandparents. They
were adults at the time of these proceedings. Mother was convicted in Sonoma County of
felony grand theft in 2008 and sentenced to 36 months of probation.
Jurisdiction
The parents appeared at the jurisdictional hearing on June 4, 2019. The
department requested the juvenile court find the allegations in the petition true and set a
dispositional hearing in 30 days so the department could assess whether any of the bypass
provisions for reunification services applied to the parents. The court set a contested,
combined jurisdictional and dispositional hearing for September 9.
The parents expressed their objection to the children’s removal. Father claimed
the supervising police officer overstepped his power and did not let the dispatched officer
do his job. He said the supervising police officer was not a detective and lacked the
authority to make the judgment call. In addition, the supervising officer separated him
and made it seem like he was being confrontational. He was only exercising his right to
freedom of speech. Mother objected that the decision to remove the children was not
made while she and father were present. The children had food, clothing and shelter and
there was no evidence of abuse or drug use. She refused to submit to a hair follicle test
because her attorney advised against it.
On June 28, 2019, Sophia was taken to a children’s hospital after it was discovered
she had cuts on her arms. She was involuntarily detained (§ 5150) and admitted to a
psychiatric facility. The day before she visited with her parents. Before she arrived,
father was telling the social worker it was Sophia’s fault that the children were removed.
It upset him that he had to file criminal charges against his own daughter for making false
allegations against him. Mother made comments implying that Sophia was participating
in sex trafficking and father gave her an ultimatum about placement. After the visit,
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Sophia felt like harming herself. On July 2, 2019, she was discharged and placed in a
foster home.
During a child and family team meeting on June 28, 2019, mother agreed to
participate in the assessments offered by the court if they could be arranged during the
days that she visited the children. She also agreed to participate in a hair follicle test but
failed to show for the test. Father refused to participate in the meeting because the social
workers would not allow his dog to attend.
On July 12, 2019, father stated the department could not make him do services
because they were not court ordered. He planned to sue the department for removing the
children. He threatened Montez, stating he was going to make his life a “ ‘living hell’ ” if
he did not return the children to him. He alleged the department and the court were
colluding and doing “ ‘illegal stuff.’ ” Mother asked that her services be provided
through Stanislaus County, stating she did not want to participate in services in
Fresno County.
On July 29, 2019, Montez drove to Oakdale to verify the parents’ residence. He
knocked on the door and rang the doorbell several times over a 20-minute period.
Montez believed there was someone in the home because he could hear the television and
the sound of someone inside moving things, but no one answered the door.
On August 12, 2019, the department filed a modification petition under
section 388 asking the juvenile court to suspend visitation between Sophia and her
parents. The parents blamed Sophia for the removal of the other children and refused to
drug test before visits to demonstrate they were sober. Sophia told the social worker her
parents’ behavior caused her stress. She felt embarrassed and ashamed at times. She did
not want to continue visits with her parents for the time being and did not want to reunify
with them. At a hearing on the petition on August 22, the court suspended the parents’
visitation with Sophia.
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Disposition
In its dispositional report, the department reported the parents refused to
participate in services until ordered by the court. They were scheduled to participate in
substance abuse, mental health and domestic violence evaluations but did not keep the
appointments. They were on a waiting list for a parenting class and did not register to
drug test. Mother wanted to participate in services in Stanislaus County but had not
verified residency there. The parents visited the children but missed some visits because
they lived in Oakdale and did not have money for gas. On several occasions, they
refused to return the children to their caregivers and argued with departmental staff in
front of the children. Father was disrespectful, demanding and threatening to
departmental staff.
The department recommended the juvenile court provide mother reunification
services but deny father services under section 361.5, subdivision (b)(10)3 because of his
failure to reunify with K.M. Given the circumstances under which K.M. was removed,
the department did not believe father made subsequent efforts to treat his children’s
mental health problems. It opined it would not be in the children’s best interests to
provide him reunification services.
Neither parent appeared at the contested, combined hearing on September 9, 2019.
They were then living in Modesto. Montez told the juvenile court that the parents had
been difficult. They were emotionally unstable and erratic. They called him at all hours
of the day; at 2:00 a.m., 4:00 a.m., 10:00 p.m. Their demeanor changed abruptly from
3 Section 361.5, subdivision (b)(10) provides that reunification services need not be
provided if the juvenile court finds by clear and convincing evidence that the court
ordered termination of reunification services for any sibling or half sibling of the child
because the parent failed to reunify after the child had been removed from his or her
custody and the parent has not subsequently made a reasonable effort to treat the
problems that led to the removal of the sibling or half sibling.
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happy and grateful to profane. They sent emails to Montez, their attorneys, and the
deputy director and director of the department, making false allegations against him.
They followed and harassed the care providers which resulted in a change of placement
and separation of the children. Their speech was slurred sometimes and “overly
energized.” The court noted that there were also concerns about transiency stemming
from the case in St. Louis, Missouri.
The juvenile court adjudged the children dependents under section 300,
subdivision (b)(1). The court declined to bypass father for services and ordered the
parents to participate in the services offered at detention. The court also ordered them to
participate in psychological evaluations. The court questioned their ability to benefit
from services, father because he was “[h]ighly angry and volatile,” “[e]rratic to the point
of bizarre” and mother because she was controlled by him. The court granted the
department’s section 388 petition suspending visitation with Sophia, specifically finding
that visitation was detrimental but noting it was temporary pending Sophia’s participation
in mental health services and the parents’ engagement in services. The court granted the
department discretion to advance visitation for the other children to unsupervised and/or
therapeutic supervised up to extended visitation with a 10-day notice. The court set the
six-month review hearing for March 3, 2020.
Mother appealed the jurisdictional findings and dispositional orders, which were
affirmed. (In re S.S. et al. (Aug. 24, 2020, F080123) [nonpub. opn.].)
Initial Six Months of Services
On October 30, 2019, Montez drove to Modesto to verify the parents’ residence
there. He observed the house was boarded up and several documents were posted on the
window. A neighbor approached and told Montez the parents broke into the house a few
months before in the middle of the night. They were up at all hours of the night and he
knew they were not the owners of the house. The bank had foreclosed on the house. He
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and other neighbors were concerned because of the foot traffic in the house, the constant
screaming and the fact that the parents were up all night. There had been several
incidents of domestic violence at the house and one night mother ran from the house
screaming for help. The police were called, and the parents were arrested.
On November 5, 2019, the juvenile court conducted a disposition mediation
hearing. The parents did not participate in the mediation. They were living in Merced.
County counsel informed the court that mother violated the court’s order not to contact
Sophia. On October 10, the department was informed that the parents participated in a
discussion with a radio talk show host about the case. The discussion lasted
approximately an hour and they discussed Sophia in detail. Mother sent Sophia the link
to the radio broadcast by social media. Sophia was very upset by the incident. County
counsel also informed the court of Montez’s trip to Stanislaus County to verify their
address and the discussion with the neighbor.
The juvenile court addressed the issue of transferring the case to Stanislaus
County, stating that the case would remain a Fresno County case until the parents
presented evidence that they established a stable residence in another county.
On January 15, 2020, Montez presented the parents a services plan, which
included services for father, requiring him to complete mental health, domestic violence
and substance abuse assessments and a parenting program and submit to random drug
testing. The parents refused to sign it.
The department recommended the juvenile court terminate reunification services
at the six-month review hearing. The parents had not participated in any of their services
despite multiple referrals, meetings and telephone and email communications from
May 2019 to February 2020. They visited the children but inconsistently, missing visits
every month because of work, car trouble and not having money for gas. In addition,
they had not progressed beyond supervised visitation because of their inappropriate
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behavior. Twice they refused to allow the children to leave with their caregivers. At the
end of a visit on June 27, 2019, the parents refused to let the one year old go for about
10 minutes. As Montez and another social worker were getting into their car, the parents
yelled that they were going to sue Montez and the department. Father stated, they
“ ‘f***** with the wrong person’ ” and should not “ ‘have messed with my kids.’ ” At a
prior visit that same month, father claimed that Montez received $363.00 per child on his
caseload. On August 7, 2019, the parents began therapeutically supervised visits and
were transitioned to intensive supervised visits on October 2, 2019.
There were also concerns the parents were engaging in domestic violence. Mother
disclosed being physically abused by father and attended visits with visible injuries.
According to the children, the parents sought information on their whereabouts and
despite a no visitation order, mother continued to try to reach Sophia through social
media and tried to bribe her to visit and to live with her.
Although the parents requested many times to have their case transferred to
Stanislaus County, they did not establish their residency there. Mother also made
informal requests that their case be transferred to Madera County, Merced County and
Lake County.
Meanwhile, the children were doing well in their placements and the department
secured a plan of adoption for six of the seven children. Fifteen-year-old Sophia was
placed separately in a foster home. She was maintaining average to above average
grades, was on the high school’s basketball team and involved in gymnastics. Twelve-
year-old D.M. was separately placed. He was on the school wrestling team and making
progress in his academics. Seven-year-old Michaela was in a STRTP. She was doing
well in school and had been recognized several times for being an outstanding student.
Her behavior was under better control and she had not been involuntarily detained since
May 2019. Nine-year-old K.C.M. and five-year-old K.L.M. were placed together and
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making improvements in their education. Four-year-old K.B.M. and one-year-old
K.A.M. were placed together and making great strides in their development.
On March 3, 2020, the juvenile court continued the six-month review hearing and
set it as a contested hearing on June 23, 2020.
Review Hearings Continued and Combined with Modification Petitions
On April 24, 2020, Montez applied for a restraining order against mother,
asserting she and father continuously harassed him over the prior 10 months. The
harassment included filing false police reports against him, filing false sexual harassment
complaints against him with his employer and making indirect threats, such as “ ‘[Y]ou
are going to get yours’ ” and “ ‘[Y]ou will be sorry if I don’t get my kids back.’ ” More
recently, she attempted to obtain his personal information and posted it on her YouTube
channel, Mommy of Nine. She also directed people to show up at his house and said she
was no longer playing around. Her attorney was contacted and facilitated trying to get
the video taken down, which resulted in it being made private but it was still available to
some people on YouTube. She also stated on YouTube that she had the names and
addresses of the children’s foster parents. A few weeks after she posted the information,
the parents and their acquaintances showed up unannounced at the foster homes. Montez
felt insecure in his home and had trouble sleeping.
On May 5, 2020, the juvenile court admonished mother not to have any
unauthorized contact with the children or discuss the case outside of court proceedings.
The court also ordered her to remove the video by 5:00 p.m. that day and ordered the
parties to disclose any of mother’s missed visits. Montez’s request for a restraining order
was denied.
On May 11, 2020, the department filed a section 388 petition asking the juvenile
court to suspend the parents’ visitation with the remaining children because the parents’
behavior placed them at risk. The hearing on the petition was set for June 23, 2020.
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On June 3, 2020, mother’s attorney filed a statement of contested issues, raising
the issue whether mother was provided reasonable reunification services considering
Montez’s repeated sexual advances. In mother’s affidavit attached, mother stated she
and father separated during the proceedings but planned to resume living together by
June 1, 2020. Beginning in August 2019, Montez made inappropriate sexual advances
toward her. He got very close to her, hugged her and rubbed her bottom. He told her she
was beautiful, intelligent and too good for father and asked her to see him without father
present. He called her “ ‘honey’ ” and “ ‘sweetie.’ ” Montez promised to help her regain
custody of the children if she “played along.” When she did not, he retaliated by
reducing the frequency of visits. She attempted to report his behavior, but no one
returned her calls and emails. In May 2020, Cheryl O’Connor, Montez’s supervisor,
received a formal complaint. The parents’ case was transferred to another social worker
in July 2020.
On June 12, 2020, Donovan (adult son) filed modification petitions for each child,
asking the juvenile court to place the children with him until they reunified with their
parents. He stated Kyra (adult daughter) was relocating to live with him and help care for
the children. The court summarily denied the petitions because Donovan did not
establish new evidence or a change of circumstances.
On June 23, 2020, a new judicial officer convened the contested hearing on the
department’s section 388 petition and the six-month review of services. Prior to the
hearing, mother disqualified the commissioner previously assigned the case. Mother did
not appear at the hearing. She was out of state caring for Kyra, who had surgery. The
juvenile court continued the hearing to August 18, 2020, as a contested six- and 12-month
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review/section 388 hearing. The court also conducted a Marsden4 hearing and appointed
new counsel for father.
On July 24, 2020, father’s attorney filed a statement of contested issues, arguing
the department’s failure to establish father’s residence in Stanislaus County and provide
him services there was unreasonable. Father asserted Montez’s visits to his home were
not a meaningful effort to verify his residence. Montez could have confirmed his
residence by requesting his utility bill information or dated mail. Father also informed
the juvenile court he and mother were living in Mariposa and asked to have the case
transferred there.
On July 6, 2020, mother completed assessments for domestic violence, substance
abuse and parenting through Court Ordered Programs Inc. Mother was not forthcoming
about her history. She disclosed being arrested for trespassing in October 2019 but did
not mention her felony conviction for grand theft. She denied any substance abuse
despite the children’s statements they suspected she was using drugs. Given mother’s
refusal to participate in mandatory drug and alcohol screening tests, irresponsible
behavior regarding alleged drug use, having sexual intercourse in front of the children
and inability to maintain employment, it was recommended she complete a 52-week
domestic violence program, a one-year substance abuse treatment program, a 52-week
parenting program and a psychological evaluation.
On July 29, 2020, the juvenile court conducted a settlement conference on the
combined hearing and appointed new counsel for the parents. The court confirmed the
contested six- and 12-month review/section 388 hearing for August 18. The case was
assigned to a new commissioner.
4 People v. Marsden (1970) 2 Cal.3d 118.
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After father moved to disqualify the new commissioner and refused to stipulate to
her hearing the case, the matter was continued to January 5, 2021, and set as a contested
six-, 12- and 18-month review/section 388 hearing.
On August 27, 2020, mother completed a domestic violence assessment through
Logan Social Services, a division of The Logan Group Int. (Logan Group). It was
recommended she complete an eight-hour domestic violence program. On September 14,
mother completed the eight-hour domestic violence program and a 52-hour parenting
course through Logan Group. On September 15, 2020, father completed a four-hour
anger management course and an eight-hour parenting course through Logan Group.
On September 21, 2020, mother’s attorney filed a section 388 petition requesting
supervised written contact with Sophia and conjoint counseling. A hearing on the
petition was scheduled on January 5, 2021.
The department maintained its recommendation the juvenile court terminate
reunification services. The parents were uncooperative and violated the court’s orders.
The children continued to do well in their foster care placements.
Combined Review and Section 388 Hearing
On January 5, 2021, the juvenile court conducted the first review hearing in the
case. Twenty months had passed since the children were taken into protective custody.
The parents had lived in five counties. They had not participated in any services in
Fresno County. Over the course of three court sessions, the court heard testimony about
the reasonableness of services. Montez, O’Connor, the parents and Sharri M., the
maternal grandmother, testified.
Testimony of Montez
Montez was aware the parents were homeless, and that housing was a problem.
He did not offer them housing in Fresno because the department had limited resources.
Once the department established the parent was living in another county, it could transfer
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the case to the other county if the change in residence was long term or coordinate with
the other county to provide services. However, the parents never established residency in
another county. Montez did not inquire about services in Stanislaus County but
recommended the parents seek them on their own. He arranged for them to participate in
their assessments when they visited the children in Fresno, but they did not complete
them. After March 2020, services and visitation were available to the parents remotely.
Montez referred the parents for in-person parenting classes in May or June 2020.
Father did not enroll. Mother enrolled in the class but did not attend.
Montez was aware the parents had transportation problems. They had a car but
did not have money for gas sometimes. The department can provide gas vouchers with
the proper documentation, which the parents did not provide. Montez did not offer them
a Greyhound bus ticket because they had a car and he did not think to offer it. The
parents’ primary goal in asking for gas vouchers was for visitation and not to participate
in services.
Montez denied sexually harassing mother stating, “Never, all of her statements
were completely false.”
Testimony of Cheryl O’Connor
O’Connor testified the case could have been transferred to Stanislaus County
while the parents were living there but they never provided sufficient evidence they had a
stable residence for the department to request a transfer of the case. Had the parents been
more cooperative with Montez and the department and identified their residence, the
department may have offered them services in another county.
O’Connor received an email from mother on July 2, 2020, stating she completed
all her services and directed the department make decisions on her case. However, the
department had not vetted the services in terms of their content and duration. The
department tried to help mother identify services that were approved but she was not
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interested. She wanted services she could pay for and she did not trust the department.
The department attempted to assess the services mother completed but was unable to
assess father’s services because he did not provide a release of information. Mother
provided a certificate showing father completed an eight-hour parenting class, but a 12-
hour class was required. Mother also provided a certificate showing father completed a
course in anger management. O’Connor did not believe mother wanted to participate in
services.
O’Connor contacted Mariposa on December 2, 2020, to inquire about services. A
social worker from that county attempted to contact the parents but could not reach them
after multiple attempts. Mariposa County offers the services the parents need. All the
services the parents needed except for random drug testing and possibly domestic
violence were online.
Father’s case plan was created after the dispositional hearing. The plan required
him to complete programs in domestic violence and parenting, complete a substance
abuse assessment and participate in general counseling and random drug testing. Father
was told what services he had to complete and refused several times to comply.
Mother’s Testimony
Mother testified she and father lived in Mariposa County for the prior 10 months.
She provided a printout to the department showing she was living in a motel in Merced.
She provided a bill from Modesto Irrigation showing she was living there. She lived in
Fresno from February to March 2020 but did not drug test because she did not have a
referral. Montez offered her remote parenting services after the pandemic but did not
give her the link. She found services online and completed a 52-hour parenting class and
an eight-hour domestic violence class. She did not believe she needed to complete a
substance abuse assessment. She only needed mental health treatment to deal with the
dependency case. Regarding the recommendation she complete a yearlong substance
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abuse treatment program, she claimed it was based on information provided by the
department which was “90 percent false.”
Mother attended nearly every visit, adding that she earned her Ph.D. in sociology
during the reunification period.
Father’s Testimony
Father was employed and had a stable home. He maintained that the children
were removed from him unlawfully and should be returned to his custody immediately.
He did not need services. He wanted the case transferred to another county and
reevaluated. He was willing to work with any county other than Fresno County,
including Mariposa County. Father inquired about services in Stanislaus County but the
social services agency there would not provide them without a referral. He claimed
Montez enrolled him in services without telling him. Montez testified he sent a services
letter to the parents every time he enrolled them in a service and called to let the parents
know or left them a voice message.
Testimony of Sharri M.
Sharri M. emailed Montez in early January 2020 asking him to transfer the case to
Lake County so that she could help mother. Montez called her and said mother could
have her attorney file something but that it was too late. Sometime after February 2020,
Sharri M. received at her address a packet of materials for an online parenting course
addressed to mother. Sharri M. scanned the information and emailed it to mother.
Mother later told Sharri M. she was not able to complete the program because they did
not give her the link.
Argument
County counsel argued the parents chose not to reside in Fresno or participate in
services there. They never established a residence that would allow for the transfer of the
case to another county. Their motive in transferring the case was to convince another
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department that the children should be returned to their custody without services.
Minors’ counsel joined in county counsel’s argument. Counsel for the parents argued the
parents were not provided reasonable reunification services because there were obvious
barriers to reunifying—i.e., housing and transportation—which the department failed to
adequately address.
Ruling
On January 11, 2021, the juvenile court found by clear and convincing evidence
the department provided the parents reasonable reunification services, stating the parents’
behavior presented “tremendous challenges.” The court found mother’s progress was
minimal to moderate and father’s progress was minimal and that it would be detrimental
to the children to return them to parental custody. The court terminated reunification
services. The court denied the section 388 petitions filed by mother and the department.
The court suspended visitation with Sophia, finding it remained detrimental to her. The
court ordered reasonable supervised letter and gift exchange and telephonic visitation
with the other children. The court ordered no social media exchange with any of the
children. The court set the section 366.26 hearing for May 5, 2021.
DISCUSSION
Father contends the juvenile court erred in not providing him a written case plan at
the dispositional hearing. He further contends the department knew housing and
transportation were problems for him but did not assist him with finding housing or
provide him vouchers for gas or Greyhound bus passes to travel to Fresno. Instead of
arranging services for him in the county in which he lived, the department expected him
to identify services for himself. Consequently, he argues, the department breached its
duty of providing services, rendering its efforts unreasonable. The juvenile court’s
finding he was provided reasonable reunification services therefore was error and
warrants remand for further services. We disagree.
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Reasonableness of Reunification Services
Dependency proceedings have the dual purpose of protecting the welfare of the
dependent child and safeguarding the parent’s right to properly raise their own child. (In
re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) If the child is removed from parental
custody, the primary objective is to reunify the child with his or her family. (§ 202,
subd. (a).) “The foundation and central, unifying tool in child welfare services is the
[reunification] plan. The [reunification] plan must provide for the child’s care and case
management and must provide services that facilitate both return and, concurrently,
permanency.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020 ed.)
Disposition Hearing, § 2.129[4].)
Reunification, however, is not an open-ended process. Consequently, the
dependency statutes place a limit on its duration and require the juvenile court to monitor
its progress by conducting periodic review hearings at six-month intervals. (§§ 361.5,
subd. (a), 366, subd. (a)(1).) In general, services are limited to 18 months from the date
the child was originally removed from parental custody. (§ 361.5, subd. (a)(3).) The
children were initially removed from parental custody in May 2019, making
January 2021 the 20th month.
The purpose of reunification services is to place the parent in a position to regain
custody of the child. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1244.) To that end,
the department must devise a reunification plan tailored to the unique needs of the family
and make a good faith effort to help the parent access the services the plan provides. (In
re Riva M. (1991) 235 Cal.App.3d 403, 414.) “The adequacy of reunification plans and
the reasonableness of the [department’s] efforts are judged according to the
circumstances of each case.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,
1164.) “To support a finding reasonable services were offered or provided, ‘the record
should show that the supervising agency identified the problems leading to the loss of
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custody, offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made reasonable
efforts to assist the parents in areas where compliance proved difficult .…’ [Citation.]
‘The standard is not whether the services provided were the best that might be provided
in an ideal world, but whether the services were reasonable under the circumstances.’ ”
(Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)
Standard of Review
“When a finding that reunification services were adequate is challenged on appeal,
we review it for substantial evidence.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
In so doing, “we draw all reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the light most favorable to
the court’s determinations; and we note that issues of fact and credibility are the province
of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The juvenile
court’s finding that reasonable reunification services were provided must be made upon
clear and convincing evidence. (§ 366.21, subd. (g)(1)(C)(ii).) When the juvenile court
is required to apply the clear and convincing standard of proof, “the question before the
appellate court is whether the record as a whole contains substantial evidence from which
a reasonable fact finder could have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
Substantial Evidence Supports the Juvenile Court’s Reasonableness Finding
Contrary to father’s assertion, he was provided a written reunification plan, not at
the dispositional hearing in September 2019 but four months later, in January 2020. He
refused to sign it. His plan required him to complete mental health, domestic violence
and substance abuse assessments, a parenting class and participate in random drug
testing. He does not claim he did not know what his services plan required of him nor is
there any evidence in the record that he did not know.
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The record could not be clearer that father had no intention of completing
reunification services. He wanted the children returned to his custody and was angry
with Fresno County for removing them. He flatly refused to cooperate with the
department and made it difficult for the department to transfer his case to another county.
During the first 10 months of reunification efforts, he and mother lived in five different
counties. Multiple efforts were made by Fresno County and Mariposa County to verify
his address, but he was not available. He testified he was willing to work with
Mariposa County but preferred that Mariposa County reevaluate his case and determine
the children should be returned to him. Consequently, father’s claim services were not
reasonable because the department did not assist him in living and traveling to Fresno are
disingenuous given evidence he had no plan to live there or participate in services there.
Further, there is no evidence father would have cooperated with Mariposa County
or any other county had his case been transferred or had the department arranged services
through a different county. There were justifiable concerns the parents were engaging in
domestic violence, abusing substances and suffering from mental health problems. They,
however, denied having such problems. Consequently, there is no reason to believe they
would have been willing to address these issues even under the supervision of another
county agency.
We conclude substantial evidence supports the juvenile court’s reasonable services
findings and find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
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